The California legislature amended the FEHA in 1992 defining physical disability as a physiological condition that 'limits' major life activities. The legislature later clarified in the Poppink Act of 2000 that a physical disability under the FEHA does not require the federal test's 'substantial limitation' of a major life activity, but instead the CA law's 'limit.'COLMENARES v. BRAEMAR COUNTRY CLUB, INC., 29 Cal.4th 1019 (2003) 130 Cal.Rptr.2d 662, 63 P.3d 220
FRANCISCO COLMENARES, Plaintiff and Appellant, v. BRAEMAR COUNTRY CLUB, INC., Defendant and Respondent.
S098895
Supreme Court of California
Filed February 20, 2003
Appeal from Superior Court, Los Angeles County, No. BC206527, Ronald E.
Cappai, Judge, Ct.App. 2/1 B142962. Review Granted 89 Cal.App.4th 778.
Page 1020
Page 1021
Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich,
Christopher W. Olmsted; Disability Rights Education & Defense Fund,
Linda D. Kilb and Arlene B. Mayerson for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor
General, Richard M. Frank, Chief Assistant Attorney General, Louis
Verdugo, Jr., Assistant Attorney General, Catherine Z. Ysrael and Phyllis
W. Cheng, Deputy Attorneys General, as Amici Curiae on behalf of
Plaintiff and Appellant.
Eve L. Hill and Paula D. Pearlman for Western Law Center for Disability
Rights as Amicus Curiae on behalf of Plaintiff and Appellant.
Page 1022
Littler Medelson, Jody A. Landry, Kristin M. Stockholm and Alan S.
Levins for Defendant and Respondent.
Gutierrez, Preciado & House, Calvin R. House; Greines, Martin,
Stein & Richland, Martin Stein and Alison M. Turner for County of Los
Angeles as Amicus Curiae on behalf of Defendant and Respondent.
Pillsbury Winthrop, Shawn Hanson and Katherine S. Ritchey for Standard
Insurance Company as Amicus Curiae on behalf of Defendant and
Respondent.
The Legal Aid Society  Employment Law Center, Claudia Center and
Patricia A. Shiu for Patrice L. Goldman as Amici Curiae.
KENNARD, J.
The Fair Employment and Housing Act (FEHA) prohibits employment
discrimination based on a physical disability. (Gov. Code, §
12940, subd. (a);[fn1] see Esberg v. Union Oil, Co. (2002)
28 Cal.4th 262, 267.) In 1997, defendant Braemar Country Club (Braemar)
terminated plaintiff Francisco Colmenares, who had been in its employ for
25 years. Colmenares sued, alleging in part discrimination based on
physical disability (a bad back), in violation of the FEHA. (§
12900 et seq.) In May 2000, the trial court granted Braemar's
motion for summary judgment on the basis that Colmenares had failed to
make a prima facie showing of physical disability. Colmenares appealed.
On January 1, 2001, while the case was before the Court of Appeal, the
Prudence Kay Poppink Act (Poppink Act) took effect. The Poppink Act
states that "under the law of this state" a person is physically disabled
when he or she has a physiological condition that "limits a major life
activity" (§ 12926, subd. (k)(B)(i), italics added). In
contrast, federal law requires that a disability "substantially limits
one or more . . . major life activities" of an individual.
(42 U.S.C. § 12102(2)(A), italics added; 29 C.F.R. § 1630.2(g)
(2002).) The Court of Appeal refused to apply the Poppink Act to
Colmenares because his termination preceded its effective date and at the
Page 1023
time of termination, according to the Court of Appeal, the FEHA applied
the federal law's narrower definition of physical disability. Because
Colmenares had conceded that his back injury did not substantially limit
his ability to perform his job, the Court of Appeal concluded that he
could not establish a claim for disability discrimination. The Court of
Appeal affirmed the trial court's judgment.
Two months later, another division of the same Court of Appeal decided
Wittkopf v. County of Los Angeles (2001) 90 Cal.App.4th 1205, review
granted October 10, 2001, S103311. There, as here, the plaintiff's claim
of discrimination based on physical disability arose before the January
1, 2001, effective date of the Poppink Act. Disagreeing with the Court of
Appeal here, the Wittkopf court held that to come within the FEHA's
definition of physical disability a plaintiff need only show that the
physical impairment limits a major life activity. Wittkopf noted that both
before and after the Poppink Act the FEHA's definition of physical
disability requires only a mere limitation and not a substantial one.
Therefore, Wittkopf held that the Poppink Act had merely clarified
existing law on the degree of limitation required and the statute as
clarified has no true retrospective effect. We granted review to resolve
the conflict between Wittkopf and the Court of Appeal's decision in this
case.
I.
We recite the facts as set out in the record before the trial court
when it granted defendant's motion for summary judgment. (Johnson v. City
of Loma Linda (2000) 24 Cal.4th 61, 65-66.) In 1972, plaintiff Colmenares
began working for defendant Braemar as a general laborer. In 1981,
Colmenares injured his back at work. Thereafter, under doctor's orders,
Colmenares was given only light duties. In 1982, Braemar promoted him to
foreman in charge of a golf course maintenance crew, a position that took
his physical limitations into consideration. Performance reviews for
Colmenares from 1986, 1987 and 1990 rated his performance as good, and he
received raises. Beginning in 1995, a new supervisor began giving
Colmenares unfavorable performance reviews. In July 1997, Braemar
reassigned Colmenares from supervising a course maintenance crew to
supervising a clubhouse construction project that involved heavy labor.
In September 1997, Braemar fired Colmenares for "deficiencies in his work
performance."
In December 1997, Colmenares filed an administrative complaint with the
Department of Fair Employment and Housing, alleging that in 1995 Braemar
began requiring him to perform "heavier work" and two years later fired
him
Page 1024
because of his bad back. Having exhausted his administrative remedies,
Colmenares in March 1999 filed a complaint in superior court alleging,
as here relevant, that his termination violated the FEHA because it was
based on his physical disability, namely, a "chronic back injury."
Braemar moved for summary judgment on the ground that Colmenares had no
"legally cognizable disability" because his back condition did not
"substantially" limit a major life activity. Braemar relied on
Colmenares's deposition testimony in which he conceded that his back
condition did not substantially limit his ability to work as a foreman.
Colmenares, however, argued that under the FEHA he need only establish
some limitation, not the substantial limitation standard of federal law,
of his ability to perform major life activities. (§ 12926,
subd. (k)(1)(B); Cal. Code Regs., tit. 2, § 2:7293.6, subd.
(c)(1)(A)(2).) The trial court disagreed, ruling that California followed
federal law in requiring that a disability "substantially" limits major
life activities. (42 U.S.C. § 12102(2)(A); 29 C.F.R. § 1630.2(g)(1)
(2002).) Finding that Colmenares had "fail[ed] to meet his burden" to
produce evidence that his back condition substantially limited his work
activities, the trial court granted Braemar's motion for summary
judgment. Colmenares appealed.
The Court of Appeal affirmed. It construed the FEHA, before its
amendment by the Poppink Act, as requiring the physical disability to
substantially limit one or more major life activities (the test under
federal law), and it held that the Poppink Act's broader standard,
requiring only that the disability "limits a major life activity" could
not be applied retrospectively to Colmenares, whose 1997 firing occurred
before that Act took effect on January 1, 2001.[fn2]
II.
Since 1973 California has prohibited employment discrimination based on
"physical handicap." (Stats. 1973, ch. 1189, § 6, p. 2501 [enacting
Lab. Code former § 1420]; see Cassista v. Community Foods, Inc.
(1993) 5 Cal.4th 1050, 1056 (Cassista).) In
Page 1025
1980, that prohibition and the definition of physical handicap to include
"impairment of sight, hearing, or speech, or impairment of physical
ability" were incorporated into the newly enacted FEHA. (Stats. 1980, ch.
992, § 4, p. 3144 [enacting Lab. Code, former § 1413,
subd. (h)].) The FEHA did not define impairment. That same year, the Fair
Employment and Housing Commission (FEHC), the entity charged with
implementing the FEHA (§ 12935), adopted a regulation
drawn from a federal regulation (45 C.F.R. § 84.3(j)(1) (1980))
implementing the federal Rehabilitation Act of 1973. (Pub.L. No. 93-112
(July 26, 1990) 87 Stat. 357; 45 C.F.R. § 84, Appen. A
(1992).) Instead of defining "impairment," the term used in the California
statutes (first in the Labor Code and then in the FEHA), the FEHC's 1980
regulation embraced federal law and defined "physical handicap" as a
condition that "substantially limits one or more major life activities."
(Former Cal. Admin. Code, tit. 2, § 2:7293.6, subd. (j)(1).)
In 1990, Congress enacted the Americans with Disabilities Act (ADA).
(42 U.S.C. § 12101, et seq.) In 1992, the California Legislature
significantly amended the FEHA. Among other things, it substituted the
term "physical disability" for "physical handicap" (former §
12920, as amended by Stats. 1992, ch. 913, § 19, p. 4297), and
it generally modeled the definition of "physical disability" (former
§ 12926, subd. (k), as amended by Stats. 1992, ch. 913, §
21.3, p. 4308) on that in the ADA. (See Cassista, supra, 5 Cal.4th at
pp. 1059-1060.) As relevant here, there was one notable difference between
the FEHA and the ADA: While the federal act described a disabled
individual as one whose disability "substantially limits one or more
major life activities" (42 U.S.C. § 12102(2)(A), italics added), the
1992 amendment to the FEHA defined physical disability as an impairment
that merely "[l]imits an individual's ability to participate in major
life activities." (Stats. 1992, ch. 913, § 21.3, p. 4308, amending
§ 12926, subd. (k), italics added.) That definition, the
Legislature stated at the time of the 1992 amendment to the FEHA, "shall
have the same meaning as the term `physical handicap' . . . construed in
American National Ins. Co. v. Fair Employment & Housing Com. [(1982)]
32 Cal.3d 603." (Stats. 1992, ch. 913, § 21.3, p. 4308.) There, this
court held that a physical handicap was not confined to a major physical
ailment or defect; instead, we construed "physical handicap" to be "a
condition of the body" that has the "disabling effect" of making
"`achievement unusually difficult.'" (American National Ins. Co. v. Fair
Employment & Housing Com., supra, 32 Cal.3d at p. 609.)
When the 1992 Legislature made the just-described amendments to the
FEHA, it also amended various non-FEHA statutes by defining disability in
those statutory schemes using the more stringent federal test of
substantial
Page 1026
limits. Thus, it inserted the federal definition of disability, including
the requirement that a disability must substantially limit a major life
activity, into provisions prohibiting disability discrimination by and
against holders of state-issued occupational or professional licenses
(Bus. & Prof. Code, § 125.6), by
business establishments providing accommodations, facilities and services
and subject to the Unruh Civil Rights Act (Civ. Code, § 54),
by entities employing, training or credentialling teachers (Ed. Code,
§ 44337), by any state-funded program (Gov. Code,
§ 11135), and with respect to state civil service
employment (Gov. Code, § 19231). (Stats. 1992,
ch. 913, §§ 2, 4, 12, 18, 28, pp. 4283, 4286, 4293, 4297, 4328.)
These changes were consistent with the 1992 Legislature's stated intent
"to strengthen California law where it is weaker" than the ADA, that is
in the non-FEHA statutes, "and to retain California law when it provides
more protection for individuals with disabilities than" the ADA, that is
in the FEHA. (Stats. 1992, ch. 913, § 1, p. 4282.)
Notwithstanding the Legislature's 1992 amendment of the FEHA to specify
that physical disability required only a limitation, as opposed to the
federal law's substantial limitation, of a person's ability to
participate in major life activities, the FEHC did not immediately replace
its 1980 regulatory definition of physical disability modeled on the
federal law's more stringent definition. (Former Cal. Admin. Code, tit.
2, § 2:7293.6, subd. (j)(1), Register 80, No. 25 (June 21, 1980);
former Cal. Admin. Code, tit. 2, § 2:7293.6, subd. (i)(1), Register
86, No. 45 (Nov. 8, 1986); former Cal. Admin. Code, tit. 2, § 2:7293.6,
subd. (i)(1), Register 88, No. 18 (Apr. 30, 1988).)[fn3] Not until
September 1995 did the FEHC adopt a regulation that conformed to the
Legislature's 1992 amendment of the FEHA. The 1995 regulation
incorporated by reference the statutory definition of physical disability
(Cal. Code Regs., tit. 2, § 2:7293.6, subd. (a)(1)) and defined a
physically disabling disease or condition as one that "[l]imits an
individual's ability to participate in major life activities." (Cal. Code
Regs., tit. 2, § 2:7293.6, subd. (e)(1)(A)(2).) In this case,
Colmenares's dismissal occurred in 1997.
In September 2000, the Legislature enacted the Poppink Act, which took
effect on January 1, 2001. As relevant here, the act amended the FEHA's
definition of physical disability. (§ 12926, subd. (k), as
amended by Stats. 2000, ch. 1049, § 5.) The FEHA, in section
12926, subdivision (k) had previously provided that a "`[p]hysical
disability' includes . . . [h]aving" a "disease, disorder, condition,
cosmetic disfigurement, or anatomical loss" (hereafter disease or
condition) that both "[a]ffects one or more" of certain
Page 1027
enumerated "body systems" and "[l]imits an individual's ability to
participate in major life activities." (Stats. 1992, ch. 913, § 21.3,
pp. 4307-4308.) The Poppink Act changed the FEHA's requirement that a
physical disease or condition limit "major life activities" to the
singular "a major life activity."[fn4] The act explained that such
a qualifying disease or condition "limits a major life activity if it
makes the achievement" of the activity "difficult."[fn5]
(§ 12926, subd. (k)(1)(B)(ii).)
Of particular relevance here is that the FEHA in section 12926
used the term "limits," not the federal law's "substantially limits"
language, before and after its amendment by the Poppink Act. In this
regard, the act declared: "[T]he Legislature has determined that the
definition[] of `physical disability' . . . under the law of this state
require[s] a `limitation' upon a major life activity, but do[es] not
require, as does the [federal ADA], a `substantial limitation.' This
distinction is intended to result in broader coverage under the law of
this state than under that federal act." (§ 12926.1, subd.
(c).) Further, the Legislature declared that "[n]otwithstanding any
interpretation of law in Cassista v. Community Foods[, Inc.] (1993)
5 Cal.4th 1050," it intends state law "to require a `limitation' rather
than a `substantial limitation' of a major life activity." (§
12926.1, subd. (d).)
Not only did the Poppink Act of 2000 leave unchanged the "limits" test
in the FEHA, it also amended other, non-FEHA, statutes to delete the term
"substantial" from the limitation test these statutes had used since
1992. Legislative committee analyses explained that the Poppink Act
"standardizes" the definition of physical disability "in California civil
rights laws, clarifying that California's disability protections are
broader than federal protections." (Assem. Com. on Labor and Employment,
Analysis of Assem. Bill No. 2222 (1999-2000 Reg. Sess.) as amended Apr.
5, 2000, italics added; accord, Assem. Com. on Appropriations, Analysis
of Assem. Bill No. 2222 (1999-2000 Reg. Sess.) as amended Apr. 5, 2000.)
Thus, the Poppink Act deleted from the Unruh Civil Rights Act (Civ.
Code, § 54, subd. (b)) and from the state civil service scheme
(Gov. Code, § 19231) the requirement that a disability must
substantially limit a major life activity, thereby conforming those
statutes to the "limits" test of the FEHA. (Assem. Com. on Labor and
Employment, Analysis of Assem. Bill No. 2222 (1999-2000 Reg. Sess.) as
amended Apr. 5, 2000; State Personnel Bd., Bill Analysis of
Page 1028
Assem. Bill No. 2222 (1999-2000 Reg. Sess.) and related bill Sen. Bill No.
2025 (1999-2000 Reg. Sess.) Apr. 5, 2000; Civ. Code §§ 51,
subd. (e), 51.5, subd. (d), 54, subd. (b); Gov. Code § 19231,
as amended by Stats. 2000, ch. 1049, §§ 2-4 & 9.) This pattern of
Legislative action compels our conclusion that in 2000 the Legislature
intended not to make a retroactive change, but only to clarify the degree
of limitation required to be physical disabled under the FEHA.
III.
Here, the Court of Appeal concluded that until January 1, 2001, when
the Poppink Act took effect, California law protected as physically
disabled only those "whose disabilities substantially limited a major
life activity," the test under federal law. It reached that conclusion in
reliance on certain language in our 1993 decision in Cassista, supra,
5 Cal.4th 1050. Cassista does contain language that, at first glance,
appears to support the Court of Appeal's conclusion here. But a closer
look reveals that the comment in question, made in passing, was
unnecessary to resolve the issue in that case and therefore was mere
dictum.
In Cassista, the plaintiff alleged that she was denied a job because of
her obesity. (Cassista, supra, 5 Cal.4th at p. 1054.) The sole issue
before this court was whether the plaintiff's obesity was a physical
handicap or disability under the FEHA, which, as amended in 1992,
required "a `physiological' disorder that affects one or more of the
basic bodily `systems' and limits the claimant's ability `to participate
in major life activities.'" (At p. 1059, italics added.) Because the
plaintiff had not offered any evidence that her obesity resulted from "a
physiological condition or disorder affecting" a body system, the first of
the two statutory requirements, we concluded that she did not meet the
FEHA's definition of physical disability. (At p. 1066.) We did not
address the second statutory requirement for disability, that is, the
extent to which the plaintiff's ability to participate in major life
activities must be impaired. When Cassista went on to comment on that
requirement, its pronouncement became mere dictum, thus lacking in
precedential force.
Cassista was decided in 1993, shortly after the Legislature in 1992 had
significantly amended the FEHA, by replacing the phrase "physical
handicap" with "physical disability" and recasting the definition of
"physical disability" (ante, p. 5). In describing the continuity between
the statutory schemes before and after the 1992 amendment, Cassista
stated that the definition of physical disability as amended in 1992 and
the "long-standing interpretation of `[physical] handicap'" contained in
the implementing regulations were "in harmony" because "[e]ach requires
an actual or
Page 1029
perceived physiological disorder, disease, condition, cosmetic
disfigurement or anatomical loss affecting one or more the body's
major systems and substantially limiting one or more major life
activities." (Cassista, supra, 5 Cal.4th at p. 1060, italics added.) This
sentence is misleading; the statutory definition of physical disability
enacted in 1992 did not require the physical limitation to be
substantial.
The Court of Appeal here specifically relied on the italicized language
from Cassista in holding that Colmenares was required to show that his
back injury substantially limited his ability to work. But, as we have
explained, that comment in Cassista was dictum: Not at issue in Cassista
was the extent to which the plaintiff's ability to participate in major
life activities must be impaired. "Language used in any opinion is of
course to be understood in the light of the facts and the issue then
before the court, and an opinion is not authority for a proposition not
therein considered." (People v. Scheid (1997) 16 Cal.4th 1, 17, quoting
Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
A close look at Cassista reveals that in three other passages it
accurately described physical disability under the FEHA as a condition
that "limits," as opposed to substantially limits, participation in major
life activities. (Cassista, supra, 5 Cal.4th at pp. 1052, 1059, 1061.)
Thus, by 1997 when Colmenares was fired, the law as described in
Cassista required only that the physical condition limit, not
substantially limit, participation in major life activities.
In 1995, the FEHC adopted a new regulation that tracked the language of
the Legislature's 1992 amendment to the FEHA by defining "physical
disability" as a physiological disease or condition that "affects" a body
system and "[l]imits an individual's ability to participate in major life
activities." (Cal. Code Regs., tit. 2, § 2:7293.6, subd. (e).) An
agency invested with quasi-legislative power to adopt regulations has no
discretion to promulgate regulations that are inconsistent with the
governing statute, in that they "`alter or amend the statute or enlarge
or impair its scope.'" (Carmel Valley Fire Protection Dist. v. State of
California (2001) 25 Cal.4th 287, 300.) By issuing new regulations in
1995, the FEHC brought its regulatory definition of physical disability
into alignment with the FEHA's statutory definition, which had been in
effect since January 1, 1993. We "give substantial weight to the FEHC's
construction of the statutes under which it operates." (Kelly v.
Methodist Hospital of So. California (2000) 22 Cal.4th 1108, 1118.)
Page 1030
Since adopting new regulations in 1995 that, among other things,
mirrored the broad test of physical disability set forth in the
Legislature's 1992 amendment to the FEHA (requiring limitation, not
substantial limitation, of major life activities), the FEHC has applied
that test in two precedential decisions. (Dept. of Fair Empl. &
Hous. v. Silver Arrow Express, Inc. (1997) No. 97-12, FEHC Precedential
Decs. 1996-1997, CEB 2, pp. 7-8, 11 [finding employer regarded as
physically disabled an employee who had heart and back conditions that
prevented him from lifting, pulling or pushing loads weighing over 25
pound and thus limited his ability to participate in major life
activities]; Dept. of Fair Empl. & Hous. v. Seaway Semiconductor
(2000) No. 00-03-P, FEHC Precedential Decs. 2000-2002, CEB 1, pp. 15-16
& fn. 4 [finding to be physically disabled an employee who had a
thyroid condition that limited her ability to participate in major life
activities, which the FEHC described as a "less onerous standard than the
federal definition" requiring that "an impairment `substantially limit' a
major life activity"].)
The FEHC, authorized by the Legislature to issue
precedential opinions (§ 12935, subd. (h)),
publishes those decisions, making them available to
the public as notice of its interpretation of the
statutory scheme. (See American Federation of Labor
v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017,
1025 [precedential decisions of Unemployment Insurance
Appeals Board].) We presume the Legislature was aware
that beginning in 1995 the FEHC was construing in its
regulations, and applying in its precedential
decisions, the FEHA's statutory definition of physical
disability, as set forth in the 1992 amendment to the
FEHA, to require only that a disabling condition limit
(not substantially limit) the individual's
participation in major life activities. (Robinson v.
Fair Employment & Housing Com. (1992) 2 Cal.4th 226,
235, fn. 7.) Thus, in 2000 when the Legislature passed
the Poppink Act, which explained when a physical
disability "limits" a major life activity under the
FEHA (see ante, pp. 6-7 & fn. 5), the Legislature
knew that the FEHC, in implementing the FEHA, was
already applying the "limits" test, which is broader
than the federal "substantially limits" standard.
To summarize, when the Legislature in 1992 amended the
FEHA, it defined physical disability as a
physiological condition that "limits" major life
activities. In 2000, when the Legislature passed the
Poppink Act, which amended the FEHA, it retained that
"limits" language. At that time, the Legislature
clarified in express terms that a physical disability
under the FEHA does not require the federal test's
substantial limitation of a major life activity.
(§ 12926.1, subd. (c).) Thus, before and
after passage of the Poppink Act the FEHA's test was
"limits," not substantial limits. Moreover, the
Page 1031
legislative history of the Poppink Act supports the
view that the Legislature merely clarified the
existing "limits" test in the FEHA and, contrary to
the conclusion of the Court of Appeal here, did not
retrospectively change that test. (Western Security
Bank v. Superior Court, supra, 15 Cal.4th at p. 243
["a legislative act has no retrospective effect
because the true meaning of the statute remains the
same"].)[fn6]
IV.
In petitioning for review, Colmenares raised a second issue: Did the
trial court err in granting summary judgment in light of the evidence
presented supporting [Colmenares's] allegations of disability
discrimination and failure to accommodate? Braemar replies that even if
the summary judgment was erroneously granted under the "substantial
limitation" test, it was nonetheless entitled to summary judgment on an
alternative ground it raised below.
An order granting summary judgment is reviewed de novo by the Court of
Appeal (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476), and
therefore we remand the case to that court to determine whether summary
judgment was proper on any ground advanced below by Braemar, which as the
moving party bore the burden of persuasion on its motion for summary
judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850.)
Conclusion
We hold that in 1997, when Colmenares's cause of action for wrongful
termination arose, a plaintiff seeking to establish physical disability
under the FEHA had to show: (1) a physiological disease or condition
affecting a body system; and (2) the disease or condition limited (as
opposed
Page 1032
to substantially limited, as required under federal law) the plaintiff's
ability to participate in major life activities.
The judgment is reversed, and the cause is remanded to the Court of
Appeal for proceedings consistent with this opinion.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
[fn1] Unless otherwise indicated, further undesignated statutory
references are to the Government Code.
[fn2] When a statute "merely clarifies, rather than changes, existing law
[it] does not operate retrospectively." (Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 243.) Even a material change in
statutory language may demonstrate legislative intent only to clarify the
statute's meaning. (Ibid.) If the legislative intent is to clarify, an
amendment has "no retrospective effect because the true meaning of the
statute remains the same." (Ibid.) Here, there was no change at all in
the statutory language; section 12926 used the term "limits" before
and after the Legislature's enactment of the Poppink Act. Thus,
notwithstanding extensive briefing by the parties and by amici curiae on
the retroactivity of the Poppink Act, it is analytically unnecessary here
for us to address the retroactivity of that act.
[fn3] We take judicial notice of these regulations at plaintiff's
request. (Evid. Code, § 451, subd. (b).)
[fn4] Because the issue is not before us, we express no opinion as to the
significance of this change in the statute's language.
[fn5] The Poppink Act also added these two subdivisions: "(i) `Limits'
shall be determined without regard to mitigating measures such as
medications, assistive devices, prosthetics, or reasonable
accommodations, unless the mitigating measure itself limits a major life
activity. [¶] . . . [¶] (iii) `Major life activities' shall be
broadly construed and includes physical, mental, and social activities
and working." (§ 12926, subd. (k)(B)(i) & (iii).)
[fn6] We disapprove the following cases to the extent they hold or
suggest the federal law's substantial limitation test applies to claims
of physical disability brought under the FEHA: Diffey v. Riverside County
Sheriff's Dept. (2000) 84 Cal.App.4th 1031, 1039-1040 [holding that
applicant for deputy sheriff who was unable to see the color red was not
substantially limited in life activity of working, and, therefore, was
not physically disabled under the FEHA]; Hobson v. Raychem Corp. (1999)
73 Cal.App.4th 614, 629 [holding that employee opposing a summary
judgment motion who offered evidence of "only minor limitations" but not
of substantial limitations, did not have a physical disability under the
FEHA]; Muller v. Automobile Club of So. California (1998)
61 Cal.App.4th 431, 442 [asserting that in 1992 "the Legislature intended
to conform California's employment discrimination statutes to the ADA"];
Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 721 [suggesting
the substantial limitation test must be met to prove physical disability
under the FEHA]; and Gosvenor v. Coastal Corp. (1996) 51 Cal.App.4th 805,
813 [stating "a covered disability under the FEHA . . . incorporates the
definition of disability listed in the Americans with Disabilities
Act. . . ."].
Page 1033
